Paul Cocchi d/b/a Hick-o-Rock Farm and Paul Cocchi d/b/a Paul's Tree Service v. Board of Assessors of the Town of Ludlow (December 21, 2007)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD

PAUL COCCHI d/b/a 		  	v.      BOARD OF ASSESSORS OF
HICK-O-ROCK FARM				   THE TOWN OF LUDLOW

Docket No. F281562

PAUL COCCHI d/b/a 		  	v.      BOARD OF ASSESSORS OF
PAUL'S TREE SERVICE				   THE TOWN OF LUDLOW

Docket No. F281563				   Promulgated:
							   December 21, 2007

	These are appeals under the formal procedure, pursuant to G.L. c. 58A, § 7 and G.L. c. 59, §§ 64 and 65, from the refusal of the appellee to abate taxes on certain personal property in the Town of Ludlow assessed to the appellant, doing business as one or the other entity, under G.L. c. 59, §§ 2 and 18, for fiscal year 2005.
	Commissioner Gorton ("Presiding Commissioner") heard these appeals, and, in accordance with G.L. c. 58A, § 1A and 831 CMR 1.30, issued a single-member decision for the appellee in Docket Number F281562 and for the appellant in Docket Number F281563.
	These findings of fact and report are made pursuant to requests by the appellant under G.L. c. 58A, § 13 and 831 CMR 1.32.

	Paul Cocchi, pro se, for the appellant.
	David J. Martel, Esq. for the appellee.
FINDINGS OF FACT AND REPORT
Docket No. F281562 - Paul Cocchi d/b/a Hick-O-Rock Farm

	On January 1, 2004, appellant Paul Cocchi ("appellant") owned certain personal property located at 312 Miller Street in the Town of Ludlow ("subject property").  The Ludlow Board of Assessors ("assessors") valued the subject property at $28,070 and assessed to the appellant a tax thereon, at the rate of $14.96 per $1,000, in the amount of $419.93.  The appellant timely paid this amount in full.  In accordance with G.L. c. 59, § 29, the appellant also timely filed a Form of List for fiscal year 2005 listing the subject property.  The appellant timely filed an Application for Abatement with the assessors on January 31, 2005.  On April 19, 2005, the assessors denied the appellant's application and on July 19, 2005, the appellant seasonably appealed the denial to the Appellate Tax Board ("Board").  On the basis of these facts, the Presiding Commissioner found and ruled that the Board had jurisdiction over this appeal.
	The subject property consisted of inventory and a backhoe.  The assessors valued the inventory at $500 and the backhoe at $27,570.  The appellant asserted that the value of the backhoe was only about $12,000, and further argued that, under G.L. c. 59, § 8A, the backhoe was subject to an excise tax at the rate of $5.00 per $1,000, not a personal property tax at the rate of $14.96 per $1,000.
	The Board has previously dealt with the assessment of appellant's backhoe for the preceding fiscal year.  See Paul Cocchi d/b/a Hickory Rock Farm v. Assessors of Ludlow, Mass. ATB Findings of Fact and Reports 2006-680 ("Cocchi I").  In Cocchi I, the Board found that the fair cash value of the backhoe was $38,637, based on its December, 1999 purchase price of $53,000, less depreciation of 10% per year.  
	In the present appeal, the Presiding Commissioner reduced the fiscal year 2004 value of $38,637 by 10% for depreciation to arrive at a fair cash value of the backhoe for fiscal year 2005 of $34,773.  Because the fair cash value of the backhoe exceeds the assessed value of $27,570, the Presiding Commissioner found and ruled that the appellant did not meet his burden of proving that the backhoe was overvalued.  
	With respect to the appellant's assertion that the backhoe should be valued and taxed under G.L. c. 59, § 8A, instead of G.L. c. 59, §§ 2 and 18, the Presiding Commissioner found and ruled that the appellant failed to prove that he was "engaged principally in agriculture" as required by § 8A, because the appellant did not introduce sufficient evidence on this issue.  The appellant's bare assertion, without more, failed to provide the Presiding Commissioner with the evidence necessary to determine the extent to which the appellant was engaged in agriculture.  
	Further, the Presiding Commissioner found and ruled that the appellant failed to meet his burden of establishing the value of the backhoe at issue for purposes of § 8A.  Specifically, the Presiding Commissioner found and ruled that the appellant did not present any evidence of the backhoe's "valuation as determined by the commissioner of revenue," as required by § 8A.  Accordingly, the Presiding Commissioner found and ruled that the appellant did not establish the appropriateness of valuing and taxing the backhoe under § 8A and, therefore, he found and ruled that it was proper for the assessors to value and tax the backhoe under G.L. c. 59, §§ 2 and 18.  
	Regarding the appellant's claim that his inventory was overvalued, the appellant introduced no evidence either describing the so-called inventory or valuing it as of January 1, 2004.  Therefore, the Presiding Commissioner found and ruled that the appellant failed to meet his burden of proving that the inventory was overvalued.  
On the basis of these findings, the Presiding Commissioner issued a decision for the appellee in Docket Number F281562.

Docket No. F281563 - Paul Cocchi d/b/a Paul's Tree Service

	On January 1, 2004, the appellant owned miscellaneous furniture and fixtures, a telephone, ten chainsaws and a stump grinder located at 312 Miller Street in the Town of Ludlow ("subject property").  The assessors valued the subject property at $5,750 and assessed to the appellant a tax thereon, at the rate of $14.96 per $1,000, in the amount of $86.02.  The appellant timely paid this amount.  In accordance with G.L. c. 59, § 29, the appellant also timely filed a Form of List for fiscal year 2005 listing the subject property.  The appellant timely filed an Application for Abatement with the assessors on January 31, 2005.  On April 19, 2005, the assessors denied the appellant's application and on July 19, 2005, the appellant seasonably appealed the denial to the Board.  On the basis of these facts, the Presiding Commissioner found and ruled that the Board had jurisdiction over this appeal.  
	The assessors valued the miscellaneous furniture and fixtures at $240, the phone at $20, the chainsaws at $2,070 and the stump grinder at $3,420.  As in Cocchi I, the appellant offered little evidence describing or valuing the miscellaneous furniture, fixtures, and the telephone.  Accordingly, the Presiding Commissioner found and ruled that the appellant did not meet his burden of showing that the assessors overvalued his furniture, fixtures and telephone.  
	Regarding the appellant's stump grinder, the Board in Cocchi I found that the appellant had sufficient knowledge to testify concerning the value of the stump grinder and ruled that the appellant met his burden of showing that the fair cash value of the stump grinder as of the January 1, 2003 assessment date for fiscal year 2004 was $2,000.  In the present appeal, neither party offered any evidence concerning the appropriate depreciation for the stump grinder.  Accordingly, the Presiding Commissioner found that the $2,000 value found for purposes of the 2004 appeal was also the appropriate value in the present appeal.
	With respect to the appellant's chainsaws, the appellant claimed that they were exempt as tools of a mechanic under G.L. c. 59, § 5, cl. 20.  As in Cocchi I, the Board found on the present record that appellant was a tree surgeon, an occupation requiring skill, training and the ability to work with one's hands and with hand tools, and that he used his chainsaws in this occupation.  Cocchi I, at 688.  For the reasons detailed in Cocchi I, the Presiding Commissioner found and ruled that the appellant met his burden of establishing that he was a "mechanic" and that his chainsaws were exempt as "the tools of his trade" under § 5, cl. 20.  
	On the basis of these facts, the Presiding Commissioner found and ruled that the subject assessment must be reduced by the $2,070 value attributed to appellant's exempt chainsaws and by $1,420 to account for the overvaluation of the appellant's stump grinder.  Accordingly, the Board granted an abatement in the amount of $52.22.

OPINION
	General Laws c. 59, § 2, provides, in pertinent part, that: "All property, real and personal, situated within the commonwealth, and all personal property of the inhabitants of the commonwealth wherever situated, unless expressly exempt, shall be subject to taxation."  General Laws c. 59, § 18 provides, in pertinent part, that: "First, All tangible personal property . . . shall, unless exempted by section five, be taxed to the owner in the town where it is situated on January first." 
I.	Valuation
	The assessors are required to assess the personal estate subject to taxation at its fair cash value.      G.L. c. 59, § 38.  Fair cash value is defined as the price on which a willing seller and a willing buyer in a free and open market will agree if both of them are fully informed and under no compulsion.  Boston Gas Co. v. Assessors of Boston, 334 Mass. 549, 566 (1956).
	The appellant has the burden of proving that the property has a lower value than that assessed. "'The burden of proof is upon the petitioner to make out its right as [a] matter of law to [an] abatement of the tax.'" Schlaiker v. Assessors of Great Barrington, 365 Mass. 243, 245 (1974) (quoting Judson Freight Forwarding Co. v. Commonwealth, 242 Mass. 47, 55 (1922)). "[T]he board is entitled to 'presume that the valuation made by the assessors [is] valid unless the taxpayers . . . prov[e] the contrary.'" General Electric Co. v. Assessors of Lynn, 393 Mass. 591, 598 (1984) (quoting Schlaiker, 365 Mass. at 245).  
In appeals before this Board, a taxpayer "'may present persuasive evidence of overvaluation either by exposing flaws or errors in the assessors' method of valuation, or by introducing affirmative evidence of value which undermines the assessors' valuation.'"  General Electric Co., 393 Mass. at 600 (quoting Donlon v. Assessors of Holliston, 389 Mass. 848, 855 (1983)).  
In these appeals, the Presiding Commissioner found and ruled that the appellant, doing business as one or the other entity, failed to introduce sufficient evidence demonstrating that his inventory, fixtures, telephone and backhoe were overvalued.  With respect to his stump grinder, the Presiding Commissioner previously ruled that its value was $2,000 for fiscal year 2004.  See Cocchi I, Mass. ATB Findings of Fact and Reports 2006 at 687.  Neither party provided sufficient evidence to demonstrate that the value had depreciated, or at what rate, since January 1, 2003.  Accordingly, the Presiding Commissioner valued the stump grinder at $2,000, consistent with his prior ruling.
In addition, the appellant asserted that his backhoe should be valued and taxed under the more favorable provisions of G.L. c. 59, § 8A, instead of the property tax sections.  The Presiding Commissioner found and ruled, however, that the appellant did not introduce sufficient evidence to support a finding that he was "engaged principally in agriculture."  Moreover, the Presiding Commissioner found and ruled that the appellant failed to present any evidence of the backhoe's "valuation as determined by the commissioner of revenue," as required by § 8A.  Accordingly, the Presiding Commissioner found and ruled that the appellant did not establish the appropriateness of valuing and taxing the backhoe under § 8A, and, therefore, concluded that it was proper for the assessors to value and tax it under §§ 2 and 18.   

II.	Exemption
	General Laws c. 59, § 5, cl. 20 exempts from the property tax, under G.L. c. 59, §§ 2 and 18, "[t]he wearing apparel, farming utensils and cash on hand of every person and the tools of his trade if a mechanic, to any amount."  The appellant claimed that, as a tree surgeon, he was a "mechanic" as that term is used in clause 20 and was entitled to an exemption for his chainsaws, which he considered to be the "tools of his trade."  A party claiming a tax exemption bears a grave burden of proving the claim.  Sturdy Memorial Foundation, Inc. v. Assessors of North Attleboro, 47 Mass. App. Ct. 519, 523 (1999).  
The Board has previously ruled that appellant was a "mechanic" and his chainsaws were "tools of his trade," for purposes of clause 20.  See Cocchi I, Mass. ATB Findings of Fact and Reports 2006 at 687-689.  Accordingly, the Presiding Commissioner abated the entire $2,070 assessment placed on the appellant's chainsaws for fiscal year 2005.

III.	Conclusion
On the basis of these facts, the Presiding Commissioner issued a decision for the appellee in Docket Number F281562 and a decision for the appellant granting an abatement of $52.22 in Docket Number F281563.

					   THE APPELLATE TAX BOARD


  By: ___________________________________
  Thomas W. Hammond, Jr., Chairman




A true copy,


Attest: _________________________________
         Clerk of the Board

 Appellee filed a Motion to Dismiss for appellant's alleged failure to file the petition with the Board within the time specified by law.  G.L. c. 59 § 65 provides that a person who has been denied an abatement by the assessors may "appeal to the appellate tax board by filing a petition with such board within three months after the date of the assessors' decision."  The Board received appellant's petition on Wednesday, July 20, 2005, one day after the three-month deadline to file.  However, G.L. c. 59 § 65 also provides that a petition delivered to the Board by United States mail after the due date is considered filed as of the postmark date on the envelope.  Appellant's petition was delivered to the Board by United States mail in an envelope postmarked July 19, 2005, within the statutory three-month timeframe.  Based on these facts, appellee's Motion to Dismiss was denied.

 G.L. c. 59, § 8A provides, in pertinent part:
Any person . . . engaged principally in agriculture, who owns farm machinery and equipment . . . shall annually, on or before March first, make a return on oath to the assessors of the town where such machinery or equipment . . . are located, setting forth the make, age, model, if any, and purchase price of such machinery and equipment . . . . If the assessors are satisfied of the truth of the return they shall assess such machinery and equipment . . . at the rate of five dollars per one thousand dollars of valuation, as determined by the commissioner of revenue, of such machinery and equipment . . . and such persons shall be otherwise exempt from taxation on these classes of property under this chapter.  

 See footnote 1, supra.
 Clause 20 provides, in pertinent part, that the following property shall be exempt: "The wearing apparel, farming utensils and cash on hand of every person and the tools of his trade if a mechanic, to any amount."  

ATB 2007-1379